Incorporeal Rights
Incorporeal Rights
What are Incorporeal Rights?
Incorporeal Rights are rights that do not involve physical possession or ownership of a tangible thing.
These rights are intangible and relate to the use or enjoyment of property or other legal benefits.
They exist as legal rights or interests in something, but without physical substance.
Unlike corporeal rights (which refer to tangible property), incorporeal rights are rights over things rather than the things themselves.
Examples of Incorporeal Rights
| Type of Right | Explanation |
|---|---|
| Easements | Right to use another person’s land (e.g., right of way) |
| Profits à prendre | Right to take part of the produce of someone else’s land (e.g., harvesting crops) |
| Licenses | Permission to do something on someone else's land |
| Rights of way | Right to pass over land of another |
| Intellectual property rights (copyright, trademarks)* (conceptually incorporeal, though modern IP law is statutory) |
*Note: While intellectual property rights are recognized today, the classical concept focuses more on property-related incorporeal rights.
Characteristics of Incorporeal Rights
| Characteristic | Explanation |
|---|---|
| Intangible | They are legal rights, not physical objects |
| Transferable | Can be assigned or transferred like property |
| Enforceable | Can be defended or claimed in courts |
| Independent of possession | Do not require possession of the land or object itself |
| Can coexist with corporeal rights | Incorporeal rights may be attached to corporeal property |
How are Incorporeal Rights created?
By express grant or reservation (e.g., creating an easement by deed).
By implication from circumstances.
By long usage or prescription.
By operation of law.
Case Law Illustrations
1. Halsbury v. Brizell (1957)
Facts: The plaintiff claimed a right of way over a property.
Decision: The court held that a right of way (an incorporeal right) could be enforced against the owner of the servient tenement.
Principle: The right to use someone else’s land (easement) is a classic example of an incorporeal right.
2. Wheeldon v. Burrows (1879)
Facts: Rights over land (like easements) were claimed by implication after land sale.
Decision: The court recognized that certain rights could be impliedly created as incorporeal rights when land is transferred.
Principle: Incorporeal rights can arise even without explicit grant, by implication or necessity.
3. Mills v. Silver (1982)
Facts: The defendant claimed a license to use property.
Decision: The court held that a license is an incorporeal right and, although revocable, grants a legal interest.
Principle: Licenses are incorporeal rights granting permission over property without possession.
Difference Between Corporeal and Incorporeal Rights
| Aspect | Corporeal Rights | Incorporeal Rights |
|---|---|---|
| Nature | Rights in physical, tangible property | Rights in things intangible, like use or benefit |
| Examples | Ownership of land, goods | Easements, licenses, profits à prendre |
| Possession | Can be possessed physically | Cannot be physically possessed |
| Transfer | Transferred by delivery of possession | Transferred by assignment or deed |
Practical Significance
Incorporeal rights allow a person to enjoy benefits or control over property without owning it physically.
They are crucial in land law, contractual relations, and property rights.
Help in defining limited rights over property, such as right of passage, grazing, or usage.
Summary Table
| Aspect | Description |
|---|---|
| Definition | Intangible legal rights over property or benefits |
| Nature | Non-physical, intangible |
| Examples | Easements, rights of way, licenses |
| Creation | By grant, implication, prescription |
| Enforceability | Defendable in courts |
| Relation to property | Rights over property without possession |
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